Virginia official refuses to defend gay marriage ban

By By Daniel Rothberg

Jan 23, 2014 | 5:24 PM

Virginia Atty. Gen. Mark Herring, a Democrat who narrowly won election in November, says his office is joining sides with two couples who have sued to overturn the state’s gay marriage ban. (Bob Brown / Richmond Times-Dispatch)

Newly elected Virginia Atty. Gen. Mark R. Herring abruptly reversed the state's position on gay marriage Thursday, declaring a voter-approved ban unconstitutional and announcing that his office would no longer defend it.

Though the state will continue to enforce the existing law pending court challenges, Herring — a Democrat who narrowly won election in November — said his office would join sides with two gay couples have sued to overturn the ban. In court filings, Herring said the law is discriminatory and violates the 14th Amendment of the Constitution.

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The decision makes Virginia — a key battleground between Republicans and Democrats — the latest state to grapple with same-sex marriage, following recent federal court rulings in Utah and Oklahoma that struck down gay marriage bans.

Herring said at a news conference that Virginia had too often been on the losing side of civil rights cases, recalling the landmark 1967 Supreme Court ruling in Loving vs. Virginia that struck down the state's interracial marriage ban.

"Too many times in our history, our citizens have had to lead the way on civil rights while their leaders stood against them," Herring said. "This will not be another instance. It's time for the commonwealth to be on the right side of history and the right side of the law."

Virginians voted to add a gay marriage ban to the state's constitution in 2006, with 57% of voters in favor. Since then, public opinion on the issue has shifted dramatically. Last year, 56% of registered Virginia voters surveyed said gay marriage should be legal, according to a Washington Post poll.

The attorney general's new stance gives a boost to plaintiffs in the court challenge, but Circuit Court Clerks George E. Schaefer in Norfolk County Clerk Michele B. McQuigg of Prince William County plan to defend the law. McQuigg, who was recently granted permission to join the case, is represented by Alliance Defending Freedom, a conservative legal group.

Leading the plaintiff's team are lawyers Theodore B. Olson and David Boies, who also helped defeat California's gay marriage ban, Proposition 8, before the Supreme Court last year. The suit seeks to overturn a variety of Virginia statutes that do not recognize gay marriage as well as the state's constitutional amendment that defines marriage as "only a union between one man and one woman."

Attorney Matthew McGill, part of the group representing the plaintiffs, applauded Herring's move. "I think it certainly puts the Virginia marriage laws under an additional degree of scrutiny now that the attorney general of the state has acknowledged that they are violating the United States Constitution," McGill said. "It calls those laws even further into doubt."

Herring's announcement reverses the position of his predecessor, Ken Cuccinelli, a Republican who was an outspoken opponent of gay marriage during his unsuccessful campaign for governor last fall. The attorney general's race between Herring and his Republican challenger, state Sen. Mark D. Obenshain, was one of the closest in state history.

"It took Mark Herring less than a month to decide he doesn't want to be attorney general," Mullins said in a statement. "The first job of Virginia's attorney general is to be the commonwealth's law firm, and to defend the duly passed laws of the commonwealth."

Ken Connelly, who is helping Alliance Defending Freedom represent McQuigg, said the legal team did not expect Herring's action to hurt their side. "We believe the law should be upheld," Connelly said.